Inspection as invasive as that proposed ought not to be undertaken simply on basis of suspicion

DISCOVERY

Inspection as invasive as that proposed ought not to be undertaken simply on basis of suspicion

Respondent filed motion for order that court appoint computer forensic expert to examine computer systems of applicant and its principal, and order that employees or agents of applicant assist expert with all reasonable requests to fulfill its mandate. Respondent wanted expert to verify whether two e-mails between applicant’s principal and third party were authentic. Applicant’s position was that the e-mails were not authentic, were never exchanged, and did not appear in its system. Motion dismissed. Motion judge accepted applicant’s submission that no trace of e-mails was found following forensic investigation of its devices. Nor was any trace or e-mails found during execution of Anton Piller orders. Inspection as invasive as one proposed by respondent ought not to be undertaken simply on basis of suspicion, speculation or conjecture. Order sought by respondent was disproportionate and unnecessary, and value to be gained through order proposed was limited.
Direct Energy Marketing Ltd. v. National Energy Corp. (Jun. 11, 2013, Ont. S.C.J., J.S. O’Neill J., File No. CV-11-431862) 233 A.C.W.S. (3d) 331.